1st Circuit Court of Appeals, September, 2009, Federal Case law

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Federal Courts - 1st Circuit Court of Appeals - September 28 - October 14, 2009

Chiang v. Skeirik, No. 08-2105, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, September 28, 2009, Decided
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Overview: Plaintiff's Bivens claim, alleging that he was denied due process during the processing of a visa application was properly dismissed because plaintiff failed to name any officers in their individual capacities in his complaint, and a Bivens claim did not lie against the United States.

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Shepley v. Johnson & Johnson (In re Pharm. Indus. Average Wholesale Price Litig.), No. 08-1002, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, September 28, 2009, Decided
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Overview: Because Class 1 had not participated in the Class 2 and 3 bench trial, and the same price spread between a drug company's wholesale and alleged secret discount to doctors was then applied to Class 1 in a final judgment, the judgment was vacated so that before entering summary judgment, Fed. R. Civ. P. 56's deferential standard had to be applied.

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R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., No. 08-2542, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 1, 2009, Decided
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Overview: Where a bank sought to intervene in a suit between a mortgage purchaser and a mortgage servicer after a settlement had been approved, the motion was properly denied as untimely because, inter alia, the two-and-one-half month delay between learning of the suit and filing the motion was inexcusable, and denial would not cause significant prejudice.

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Remexcel Managerial Consultants, Inc. v. Arlequin, No. 08-1753, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 1, 2009, Decided
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Overview: Default judgment against a municipality and its mayor was affirmed, as the district court did not abuse its discretion by entering the judgment in response to defendants' repeated failures to respond to discovery. Law of the case doctrine barred reconsideration of defendants' claim that plaintiffs had not pled a cognizable theory of retaliation.

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United States v. Torres-Oliveras, No. 07-2720, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 1, 2009, Decided
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Overview: Court properly denied defendant's 18 U.S.C.S. ? 3582(c)(2) motion for a reduction of sentence; because defendant stipulated to possession with intent to distribute powder cocaine, the revised U.S. Sentencing Guidelines Manual regarding crack cocaine possession was simply not applicable to his case.

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Sugarloaf Funding, LLC v. United States Dep't of the Treasury, No. 08-2515, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 7, 2009, Decided
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Overview: Motion to quash third-party summonses filed by petitioners, targets of an IRS investigation into improper tax shelters, was properly denied because the IRS made a prima facie showing for issuance of the summonses, the summoned information was relevant, the summonses were not overbroad, and they were not used for an improper purpose.

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Seng v. Holder, No. 08-2485, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 8, 2009, Decided
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Overview: Discrepancies in an alien's testimony were major and cut to the core of her foundational claim of a well-founded fear of political persecution in Cambodia, and her remaining evidence was insufficient to sustain her burden of proof to establish that she was a refugee and eligible for asylum under 8 U.S.C.S. ? 1158(b)(1)(B).

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Medical Mut. Ins. Co. v. Indian Harbor Ins. Co., No. 08-2525, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 8, 2009, Decided
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Overview: Because neither an administrative charge nor a judicial complaint satisfied the definition of a "claim" under a D&O policy since both named the corporation and not any individual director or officer, although wrongful acts against them were made, the corporation was not entitled to coverage on a claim of discrimination against it.

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Reifler v. Brown (In re Simply Media, Inc.), No. 08-2498, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 8, 2009, Decided
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Overview: Because of deficient briefing a second time in a second appeal from the same bankruptcies, the court dismissed the appeal and ordered appellants' counsel of record to show cause why the court should not order, pursuant to Fed. R. App. P. 38, payment by him personally of fees, double costs or both for a brief that rendered the appeal frivolous.

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Wallace v. Johnson & Johnson, No. 09-1069, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 14, 2009, Decided
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Overview: A plan administrator, plan trustees, and others read "paid commissions" to mean those earned as a non-management salesperson, relying upon the prudential concerns and internal consistency in a benefits plan as the basis for doing so. Such considerations were permissible in interpreting an ERISA plan.

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